State v. Emerson

• Decision Date: 12 December 1927
• Citation: 1 S.W.2d 109,318 Mo. 633
• Parties: The State v. William R. Emerson, Appellant
• Court: Missouri Supreme Court

1 S.W.2d 109

318 Mo. 633

The State v. William R. Emerson, Appellant

Supreme Court of Missouri

December 12, 1927

Motion for Rehearing Overruled December 31, 1927.

Appeal from Circuit Court of City of St. Louis; Hon. A. B Frey, Judge.

Affirmed.

Walter N. Fisher for appellant.

(1) That a crime has been committed cannot be proven by the uncorroborated admissions or confessions of the defendant. Robinson v. State, 12 Mo. 592; State v Scott, 39 Mo. 424; State v. German, 54 Mo. 526; State v. Bowman, 294 Mo. 245; State v Mullinix, 301 Mo. 385; State v. Cox, 264 Mo. 408; State v. Meyer, 293 Mo. 113. (2) Statements made by a third party, not shown to have been authorized by the defendant to make them, are inadmissible and their reception in evidence is erroneous. (3) A defendant is entitled to instructions which are the converse of those offered against him. Warehouse Co. v. Toomey, 181 Mo.App. 70; Boles v. Dunham, 208 S.W. 480; 1 Randall, Instructions, 213; State v. Jackson, 126 Mo. 521; State v. Fredericks, 136 Mo. 51; State v. Harris, 232 Mo. 317; State v. Rutherford, 152 Mo. 124; State v. Dougherty, 228 S.W. 786; State v. Johnson, 234 S.W. 794; State v. Cantrell, 234 S.W. 800; State v. Levitt, 278 Mo. 372; State v. Majors, 237 S.W. 486.

George B. Webster also for appellant.

(1) The information is fatally defective. State v. Stowe, 132 Mo. 203; State v. Barbee, 136 Mo. 440; Miller v. United States, 133 F. 337; State v. Burke, 151 Mo. 136; Starkie on Crim. Pl. (2 Ed.) 68; Joyce on Indictments (2 Ed.) sec. 284. It is fundamental that a defendant may plead one prosecution in bar of another, and this carries with it the right to have the indictment so framed that it can be made the foundation of such a plea. 2 Bishop on New Crim. Pr. (2 Ed.) sec. 543; Rex v. Gibbs, 8 Mod. 58; People v. Rouse, 23 N. Y. Cr. Pr. 340. This information could never serve to sustain a plea in bar, as the defendant could be put to trial under it for any kind of a lottery, or scheme in the nature of a lottery, as many times as the State might wish. The cases cited by the State, of which State v. Wilkinson, 170 Mo. 184, is an example, are not effective to sustain this information. In all of them the charge was much more definite and certain, and each is readily distinguishable from the instant case. (a) The rule that an indictment in the words of the statute is sufficient applies only to cases where the facts constituting the offense are set out in the statute. State v. Hayward, 83 Mo. 304; State v. Davis, 70 Mo. 467; State v. Barbee, 136 Mo. 440; State v. Burke, 151 Mo. 136. "The indictment must make specific what the statute makes general." State v. Burke, 151 Mo. 136. (b) This information against Emerson sets forth merely an untraversable conclusion of law, namely, that certain undisclosed facts make the business in which he was engaged unlawful as a lottery. It states nothing from which it can be determined whether such conclusion is well founded. Burke's case, 151 Mo. 136. (2) The evidence failed to show any lottery. It is axiomatic that to constitute a lottery there must be a distribution or allotment by chance. The element of chance must be found in the manner of distribution, rather than in such collateral uncertainties as whether or not any award will ever be made. The mere existence of some uncertainty somewhere in the scheme does not make it a lottery, since that attends upon all the affairs of humanity; nor will the simple fact that some of the parties to an agreement do not know what another party to it will do, nor when or whether he will do it, have that effect. Russell v. Equitable L. & S. Co., 129 Ga. 154; People v. Elliott, 74 Mich. 264. (3) The evidence is insufficient to sustain a conviction. (a) The testimony to the effect that defendant stated that drawings were held, without proof of the corpus delicti, is not sufficient. State v. Mullinix, 301 Mo. 385; State v. Meyer, 293 Mo. 113; State v. Bowman, 294 Mo. 245; State v. German, 54 Mo. 526; State v. Robinson, 12 Mo. 592. The evidence necessary must, to be sufficient, be competent legal evidence, and it must, like all circumstantial evidence, tend to prove that the crime was committed and be inconsistent with any other theory. There is no such corroborating evidence in this record, outside of the alleged statements of agents of the Maulding Company, and these cannot be considered for the reason that they are pure hearsay as against this defendant. The necessary corroboration is not supplied by the Reichhold contract, because there is no evidence of any award or distribution under it, nor any evidence that the only award shown to have been made (to the witness Kelly) was made under a similar contract. (b) The testimony of witnesses that the employees of the Maulding Company who solicited them or collected from them said that "there was a drawing" is incompetent as against defendant. He was not present at the time. This testimony was mere hearsay in any event. The persons who made the statements should have been called to testify. For this reason alone, this particular testimony must be rejected. When it is rejected there is nothing left to take the case out of the rule laid down in the Robinson case, 12 Mo. 592, and followed ever since.

North T. Gentry, Attorney-General, and James A. Potter, Assistant Attorney-General, for respondent.

(1) The information is in the language of the statute, and is therefore sufficient. Sec. 3563, R. S. 1919; State v. West, 157 Mo. 309; State v. Wilkerson, 170 Mo. 184; State v. Cronin, 189 Mo. 663; State v. Miller, 190 Mo. 459; State v. Becker, 248 Mo. 555. (2) The written contract offered in evidence and signed by the defendant, together with the other evidence offered by the State fully justified defendant's conviction. The only defense offered was that no drawing by lot was held. This is no defense, as the element of chance may be present in a variety of forms, and was present here in the form of a chance to secure an early discount. No contract-holder knew in advance who would get the prize. This uncertainty, this chance selection, was the bait used to cinch the contract. The evidence presents a clear case of an appeal to the gambling instinct. A clearer case of a lottery cannot be conceived. State v. Hughes, 299 Mo. 529; State v. Becker, 248 Mo. 560; State v. Mumford, 73 Mo. 647; 17 R. C. L. 1222, sec. 10; State v. Lipkin, 84 S.E. 343; Fitzsimmons v. United States, 156 F. 477; State ex rel. v. Investment Co., 64 Ohio St. 283; United States v. Purvis, 195 F. 620; State v. Clarke, 33 N.H. 335. (3) The motion for new trial fails to point out the particular evidence or claims of evidence erroneously received.

Walker, J. Blair, J., concurs; White, P. J., concurs in the result, and in all except the reasoning and conclusions as to corpus delicti.

OPINION

WALKER

The appellant was charged by information in the Circuit Court of the City of St. Louis with having aided and assisted in the establishment of a lottery as a business or avocation. Upon a trial to a jury he was convicted and sentenced to one year in jail. From this verdict and judgment he appeals.

The appellant was the president of a corporation engaged in the sale of furniture at retail, either for cash or upon time payments. It had an office in the city of St. Louis and employed agents to solicit furniture contracts and to collect the payments thereon as they became due. It also had what it termed "Crew Managers" to direct the activities of its solicitors and collectors. The method employed in conducting the business of the company was to sell contracts for fifty-five dollars each, to be paid on weekly installments of one dollar each. In these sales the company reserved the right to discount one or more contracts every week by charging off the deferred payments and delivering to the contract-holder fifty-five dollars' worth of furniture without further payments. The form of the contract executed in duplicate which was signed and approved by the appellant, omitting credits and formal parts of same not material to this issue, is as follows (State's "Exhibit A."):

"In consideration of fifty-five (55) advance weekly payments in cash of one ($ 1.00) dollar each, the Maulding Company, Incorporated (hereinafter referred to as the 'Company') agrees to sell and deliver to the Holder of this Contract (the person whose name is signed below or appears on the reverse side hereon), merchandise, to be selected by the Holder, from the stock of merchandise of the Company, priced at fifty-five ($ 55) dollars at the time the last of said payments is made, and the holder agrees to select, accept and purchase, said merchandise from the Company in full satisfaction of this Contract on the following terms and conditions: . . .

"This Contract may be chosen for discount. The Company has the right, at any time, regardless of the amount that may have been paid on this Contract, to choose this Contract for discount, or any other similar contracts it may have in force, at the rate of one or more contracts per week, and the Company agrees to immediately deliver to the Holder of this Contract, if this Contract should be so chosen, merchandise, priced by the Company at fifty-five ($ 55) dollars to be selected by the Holder from the stock of merchandise of the Company.

"It is agreed and understood by the Holder and the Company that Contracts will be chosen and discounted as above for the sole purpose of advertising the business of the Company, and not as Inducements to get the Holder to enter into this Contract or to make the original payment or any subsequent payments on the same. . . .

"The Maulding Company,

"By Wm. R. Emerson, Pres.

"E. L. Reichholdt, Holder."

Appellant and other agents of the...